Central Administrative Tribunal - Jodhpur
Shree Gopal Toshniwal vs M/O Defence on 12 February, 2024
1 (OA No.290/00164/2015)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00164/2015
Pronounced on : 01.03.2024
(Reserved on : 12.02.2024)
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. AMIT SAHAI, MEMBER (A)
Shree Gopal Toshniwal S/o Sh. Mishri Lal Toshniwal, aged about 62
years, R/o 47 Shyam Nagar, Gali No.4, Pali Link Road, Jodhpur.
Retired from the post of EE in the office of CWE (Army) Jodhpur.
.......Applicant
By Advocate: Mr. S.K. Malik.
Versus
1. Union of India through the Secretary, Ministry of Defence, Raksha
Bhawan, New Delhi.
2. Director General (Pers), Engineer-in-Chief's Branch, Integrated
Headquarer of Ministry of Defence (Army), Kashmir House, DHQ
PO New Delhi-110011.
3. The Commander Works Engineer (Army), Jodhpur.
........Respondents
By Advocate: Mr. Rameshwar Dave.
2 (OA No.290/00164/2015)
ORDER
Hon'ble Dr. Amit Sahai, Member (A)
1. Being aggrieved by non-grant of 3rd financial upgradation under Modified Assured Career Progression (MACP) Scheme in the pay scale of Rs.15600-39100 + Grade Pay of Rs.7600/- w.e.f. 01.09.2008 to the applicant by the respondents, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with a prayer to issue revised PPO after taking into account Grade Pay of Rs.7600/- and make payment of all due retiral benefits along with 18% interest per annum.
2. Facts in brief to adjudicate this case are as under:
2.1 The applicant was initially appointed on the post of Superintendent E/M Grade-I on 23.08.1977 in the pay scale of Rs.550-
750/-. Thereafter, he was promoted to the post of AE E/M w.e.f. 27.01.1995 in the pay scale of Rs.2000-3500/-. After completion of his regular service of 24 years, the applicant was granted 2nd financial upgradation under ACP scheme w.e.f. 23.08.2001 in the pay scale of Rs.10,000-15200/-. Again, he was promoted to the post of EE w.e.f. 30.10.2006 in the pay scale of Rs.39,100 + Grade Pay of Rs.6600/-. 3 (OA No.290/00164/2015) 2.2 Vide order dated 19.05.2009, the Govt. of India introduced MACP Scheme by substituting and replacing ACP Scheme of 1999. The applicant completed 30 years of service on 23.08.2007. Therefore, according to him, he should have been granted the 3rd financial upgradation under MACP scheme along with other employees, but the same has not yet been released to him. The applicant submitted a representation on 02.07.2012 along with OM dated 13.06.2012 (Annexure A/1) to the respondents for granting 3rd financial upgradation under MACP scheme. Vide letter dated 18.06.2013 (Annexure A/3) issued by respondent no.3, it was stated that the name of the applicant will be considered for non-functional up-gradation under Pay Parity Scheme.
2.3 Since there is no answer from the respondents, the applicant again made a representation on 27.08.2014 (Annexure A/4) by mentioning the name of his junior Shri Nawab Singh Choudhary, who joined the service after him and was granted 3rd financial upgradation under MACP scheme w.e.f. 01.09.2008 with Grade Pay of Rs.7600/- in the pay scale of Rs.15600-39100/-. It is also stated that similarly situated employee Shri R.K. Kawatra has also been granted 3 rd financial upgradation under MACP with GP of Rs.7600/- w.e.f. 25.09.2011 in the same pay scale. Till date nothing has been done by the respondents, therefore the 4 (OA No.290/00164/2015) applicant has approached this Tribunal by way of filing the instant Original Application for redressal of his grievance.
3. In the reply filed on behalf of the respondents, it has been averred that apart from 30 years of regular service, there are other conditions also, which govern the non-functional upgradation. MACPS for financial upgradation is applicable to all Group 'B' 'C' and unorganized Group 'A' officers of the Government of India. For organized Group 'A' service, there is another Scheme for Non-Functional Upgradation (NFU) called Pay Parity with 2 years lagging with officers of IAS cadre. After completion of 30 years of service, the applicant was promoted to the Grade of EE on 30.10.2006 in organized Group 'A' service of Indian Defence Service of Engineers (IDSE). As per the clarification issued by DoP&T OM dated 25.09.2009 (Annexure R/1), the left-out service in the organized Group 'A' service is more than 5 years, therefore, the applicant is eligible for pay parity consideration and not under MACPS upgradation. Shri Nawab Singh Choudhary, AE (E/M) in Group 'B' post for which MACPS financial upgradation is applicable and 3rd financial upgradation under MACP scheme has been granted to him. 3.1 It is also averred by learned counsel for the respondents that Shri R.K. Kawatra, EE is much senior to the applicant. Shri R.K. Kawatra, EE, has not been granted 3rd financial upgradation under MACP Scheme 5 (OA No.290/00164/2015) but the officer got promoted to EE (Non Functional Selection Grade) having Grade Pay of Rs.7600/- in his own turn being senior to the applicant. Vide letter dated 30.04.2015 (Annexure R/3), the officer has already been promoted to EE (SG) carrying Grade Pay of Rs.7600/- on his turn vide E-in-C's Branch, New Delhi. Therefore, the respondents prayed that the OA filed by the applicant may be dismissed with costs.
4. In the rejoinder filed on behalf of the applicant, it has been stated that DoP&T, Govt. of India, OM dated 13.06.2012 (Annexure A/1) has already clarified that the issue of grant of financial upgradation under MACPS with effect from the due date for officers who have inducted to the Organised Group 'A' Services when they are nearing retirement. It has already been considered in consultation with Department of Expenditure and decided to allow them subject to the condition that only at the time of retirement an evaluation of up-gradations/ promotions earned by the officer shall be made. Further, the applicant reiterates that the persons who were lower in rank and juniors were granted 3rd financial upgradation under MACP Scheme w.e.f. 01.09.2008 with GP of Rs.7600/-, whereas, instead of benefit of 3rd MACP w.e.f. 01.09.2008 he was granted NFSG w.e.f. 19.07.2012 with GP of Rs.7600/- that too after his retirement vide letter dated 30.04.2015 (Annexure A/3). 6 (OA No.290/00164/2015) 4.1 Learned counsel for the applicant submitted that Shri Nawab Singh Choudhary is AE (E/M) in Group 'B' post whereas the applicant is holding Group 'A' post, so he will not get 3rd MACP up-gradation in the GP of Rs.7600/- w.e.f. 01.09.2008. Shri R.K. Kawatra and the applicant are from same batch and both were Graduate Engineer and were initially appointed on the post of Superintendent E/M-I and thereafter promoted on the post of AE and lastly promoted on the post of EE. The applicant has got only two promotions in his entire career. Further, NFSG & NFU are financial upgradation and not promotion as stated by the respondents. NFSG & NFU are also granted to Group 'A' officers in case they do not get promotion within stipulated period. The Schemes of ACP and MACP are introduced after the recommendations of Pay Commission for Group 'D', 'C', 'B', and 'A' in case they do not get any promotion within a period of 10, 20 and 30 years of service, therefore, the applicant prayed that the relief claimed in the OA may be allowed.
5. Heard arguments advanced by learned counsel for the parties and perused the material available on record.
6. The applicant has approached this Tribunal for the grant of 3 rd financial upgradation under MACP Scheme to him w.e.f. 01.09.2008, 7 (OA No.290/00164/2015) i.e. from the date the MACP Scheme was introduced. The applicant is claiming 3rd financial upgradation under MACPS on the ground that he completed 30 years of regular service on 23.08.2007 and has got only 2 promotions in his entire career. Whereas, the respondents have countered his claim by stating that he is not eligible for 3 rd financial upgradation as per the DoP&T OM dated 19.05.2009, vide which the MACP Scheme was introduced, which states that-
"The Scheme would be known as "MODIFIEDASSURED CAREER PROGRESSION. SCHEME (MACPS) FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES. This Scheme is in supersession of previous ACP Scheme and clarifications issued there under and shall be applicable to all regularly appointed Group "A", "B", and "C" Central Government Civilian Employees except officers of the Organised Group "A" Service."
The applicant having promoted to the Grade of Executive Engineer on 30.10.2006 in organized Group 'A' service of Indian Defence Service of Engineers (IDSE), so, he becomes ineligible for financial upgradation under MACPS. However, he is eligible for financial upgradation under another Scheme for Non-Functional Upgradation (NFU) called Pay Parity with 2 years lagging with officers of IAS cadre.
7. The applicant in support of his claim for 3 rd financial upgradation under MACPS submitted a representation on 02.07.2012 along with DoP&T OM dated 13.06.2012 (Annexure A/1) to the respondents. This DoP&T OM provides clarification regarding grant of benefits of 8 (OA No.290/00164/2015) MACPS to officers who have later on inducted into Organised Group 'A' Services. Since the applicant has been inducted into the IDSE i.e. Organised Group 'A' Services, with his promotion to Executive Engineer, w.e.f. 30.10.2006, this OM is applicable to him, which states that -
"2. The issue has been considered by this Department in consultation with Department of Expenditure. It has been decided to allow grant of financial up-gradations under MACPS with effect from the due date to those officers who are inducted to the Organized Group 'A' Services when they are nearing retirement subject to the condition that only at the time of retirement an evaluation of up-gradations/promotions earned by the officer would be made. In case such officers have already attained three financial upgradations under MACP Scheme, they shall not be entitled for NFU to the same grade from a later date".
It is seen from the records that the respondents have not replied to the request made by the applicant for granting 3rd financial upgradation under MACPS instead have suggested vide their letter dated 18.06.2013 (Annexure A/3) that he would be considered for Non-Functional Upgradation (NFU) under Pay Parity Scheme. Further, as per the facts of the case available from the records it is seen that the applicant has been granted following promotions/ financial upgradations- 23.08.1977 - Appointed as Superintendent E/M Gd I (Rs. 550 - 750/-) 27.01.1995 - Promoted to AE E/M (Rs.2000 - 3500/-) 23.08.2001 -2nd upgradation under ACPS (Rs.10000 - 15200/-) 9 (OA No.290/00164/2015) 30.10.2006 - Promoted to EE (Rs.15600 - 39100/- + Gd Pay Rs.6600) The applicant being granted two promotions and one financial upgradation in 30 years should not be eligible for 3rd financial upgradation under MACPS as mentioned below -
"1. There shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 10, 20 and 30 years services, respectively, or 10 years of continuous service in the same Level in Pay Matrix, whichever is earlier."
8. The applicant is also aggrieved by the fact that some of the officers junior to him, have been granted 3rd financial upgradation under MACPS, with Grade Pay of Rs.7,600/- w.e.f. 01.09.2008, as a result they are drawing more pay than him. The respondents have clarified this anomaly by averring that these officers belong to Group 'B' of Central Government and so they are entitled for 3rd financial upgradation under MACPS as per the applicable date and so they are drawing more pay than the applicant. Moreover, the Annexure I of DoP&T OM dated 19.05.2009, clearly states that -
"20. Financial upgradation under the MACPS shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/grade pay under the MACPS."
Thus, if the junior officer is drawing more pay than the applicant due to the award of financial upgradation under MACPS, this cannot be 10 (OA No.290/00164/2015) rectified unless the applicant is awarded financial upgradation under another Scheme for Organized Group 'A' officers known as Non- Functional Upgradation (NFU) under Pay Parity Scheme.
9. The respondents in their reply have averred that the applicant is eligible for NFU but not for 3rd financial upgradation under MACPS. However, it is seen that respondents have granted the applicant a Non Functional Selection Grade (NFSG) in the pay scale of PB-3, Rs.15600
- 39100/- + Grade Pay of Rs.7600/-, vide their order dated 30.04.2015 (Annexure R/3) w.e.f. 19.07.2012, against the Ministry of Defence vacancies for 2012-13. The Third Pay Commission had recommended introduction of Selection Grade for Group A Engineering Services as a result this scheme was introduced and its guidelines were issued by the DoP&T vide OM dated 31.07.1982 -
"The guidelines/criteria for introduction of a Non- functional Selection Grade in the organised Group 'A' Contral Services and appointment to the same shall be as follows-
(a) A non-functional Selection Grade in the scale of ,2000-25/2-2250/- may be created above the Junior Administrative Grade Scale (s.1500-2000) in Group Contral Services.
(b) Central Services Group 'A' where the scale of Rs.2000-2250/- exists as a part of the cadre structure on functional basis, will not be eligible to have a non-functional Selection Grade unless the cadre controlling authorities decide to do away with the functional selection grade and opt favour of non-
functional selection grade. Similarly, Services where the scheme of "flexible complementing" has boon introduced by the cadre controlling authorities, will not also be eligible to have a non-functional selection grade.
(c) The basis for calculation of Selection Grade strength will be sanctioned strength of the posts in the scale of Rs.1500-2000, The number of selection grade posts shall not exceed 20% of the sanctioned strength of the posts in the 11 (OA No.290/00164/2015) scale of Rs.1500-2000/ The posts for the non-functional selection grade shall be carved out of the grade whose scale of pay has maximum of Rs. 2000/-.
(d) No officer shall be eligible for appointment to the non-functional Selection Grade unless he has reached the maximum of Rs. 2000/- in the scale of Rs.1500-2000/- or in the intermediate administrative grade as the case may be and has remained there for a period of two years.
(e) The basis of appointment shall be seniority subject to rejection of unfit.
(f) Selections of the non-functional Selection Grade shall be made by a Committee to be constituted internally. It shall not be necessary to associate a member of UPSC in this Committee.
(g) The inter-se Seniority of officers in the J.A.G. or in the intermediative administrative grade as the case may be shall not be changed as a result of their appointment to the non-functional Selection Grade."
10. The assumption made by the applicant that one of his batchmates drawing more pay than him was due to grant of 3rd financial upgradation under MACPS to him by the respondents, is incorrect as submitted by the learned council for the respondents. It was merely stated by the respondents that he was senior to the applicant in the inter-se seniority of his batch, therefore, he was granted NFSG earlier to the applicant. Since the NFSG is granted on the basis of vacancies available each year as per the guidelines of this scheme. Had the respondents granted Non Functional Upgradation (NFU) under Pay Parity Scheme, then both the officers of the same batch would have received financial upgradation from the same date, i.e. from the date an IAS officer 2 years junior to them would have been posted in Selection Grade at the centre.
11. In the light of the discussion held in the preceding paragraphs, we are of the view that the applicant is not eligible for the grant of 3 rd 12 (OA No.290/00164/2015) financial upgradation under MACP Scheme, therefore the OA being devoid of merit, dismissed. However, the respondents may consider the case of applicant for granting him Non Functional Upgradation (NFU) under Pay Parity Scheme as averred by them instead of Non Functional Selection Grade (NFSG), which would benefit the applicant by release of pay scale with Rs.7600/- Grade Pay earlier than 19.07.2012 under NFSG in the instant case.
12. In view of the above, there is no merit in the present Original Application. Hence, the same is liable to be dismissed. No order as to costs.
(AMIT SAHAI) (RAMESHWAR VYAS) MEMBER (A) MEMBER (J) sv